SUDY MOHAMED

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 26963 OF 2023 (Arising from Land Application No. 37 o f2022 before District Land and Housing Tribunal for Singida at Singida) SUDY MOHAMED JAMBI (Suingas the next friend o f Yusufu Jambi, a minor)........... ........................... ...... APPELLANT VERSUS EMMANUEL MATHAYO SOA..................................................... RESPONDENT RULING 12/ 11/2024 HASSAN, J.: In the District Land and Housing Tribunal (DLHT), the appellant herein sued the respondent claiming to be a lawful owner of the disputed land located at Mkunguakihendo village. The application was heard and decided in favour of the respondent. The Appellant being aggrieved with the said decision lodged this appeal bearing five (5) grounds of appeal for resoluteness. However, for reasons which will be apparent hereunder, I will not replicate the same. l When the matter was called on for court deliberation on the 8th day of October, 2024 the appellant appeared in person, unrepresented and the appeal was heard exparte against the respondent who despite being duly served he did not enter appearance in court. However, upon perusal of the proceedings the court observed some irregularities in the record of proceedings from the DLHT which appeared to be material to the merits of the case involving injustice. The error noted is to the effect that the chairman did not append his signature in the evidence of SMI and SU5. Upon such observation, the court invited the appellant to address the court on the questions raised. The layman appellant left the matter for the court to decide since it involves a legal issue. Since the irregularity observed involves a point of law, I will only base my determination of the same as it is worth determining the appeal to its finality without touching the merits of the appeal. The issue of appending a signature after every witness evidence is guided by Order XVIII Rule 5 of the Civil Procedure Code, [Cap. 33 R.E 2019] which provides: "The evidence o f each witness shall be taken down in writing, in the language o f the Court, by or in the presence and under the persona! direction and superintendence o f the judge or magistrate, not ordinarily in the form o f question and answer, but in that o f a narrative and the judge or magistrate shall sign the same." The position has been insisted by our apex court that, failure to append signature after recording the witnesses' evidence is a fatal irregularity which vitiate the entire proceedings. See for instance in Yohana Mussa Makubi v. Republic, Criminal Appeal No. 556 of 2015 (unreported) where the court held that: "We are thus satisfied that, failure by the judge to append his/ her signature after taking down the evidence o f every witness is an incurable irregularity in the proper administration o f criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trial proceedings are authentic and not tainted. Besides, this emulates the spirit contained in section 210 (1) (a) o f the CPA and we find no doubt in taking inspiration there from. In view o f the stated omission the trial proceedings o f the High Court were indeed vitiated and are a nullity and neither did they constitute the record o f the trial and the appeal before us. Similar position was upheld in the cases of Sabasaba Enos @ Joseph v. Republic, Criminal Appeal No. 411 of 2017, and also Chacha Ghati @ Magige v. Republic, Criminal Appeal No. 406 of 2017 (all unreported). It is apparent from the records of evidence, both original and in the typed proceedings as in the instant case that, the chairman had not appended his signature into the evidence of SMI, the appellant herein and Hajili Mhanga Sungi (SU5). SMI being the applicant in the trial tribunal whose evidence was basis of the claim thus not appending his signature questions the authenticity of the evidence. Since only part of the witnesses was not appended by the trial chairman, the remedy thereto is to expunge from record the evidence of the two witnesses not appended that is SMI, the applicant and SU5 from the record of the proceedings in the trial court. Thus, the evidence of SMI and SU5 is hereby expunged from the record. Now the question remains, whether expunging the witnesses evidence prejudices the trial. Indeed, since SMI (the appellant) who was the applicant in the trial Tribunal, whose evidence carries the whole claim, 4 thus, expunging his evidence from the record of proceedings prejudices the trial since the remaining witnesses' evidence carries no weight. That being the case, the court is left with no option other than nullifying the entire proceedings. That said, I invoke the powers vested to this court under section 43 (1) (b) of the Land Dispute Courts Act, Cap. 216 to nullify the entire proceedings, quash the judgment and set aside the orders handed down by the trial tribunal. To that effect, I remit the file to the tribunal for retrial before another chairman and new set of assessors. No order as to costs. Ordered accordingly. DATED at DODOMA this 12th day of November, 2024. 12/ 11/2024 5 This Ruling delivered this 12th day of November, 2024 in the presence of the appellant who appeared in person and the respondent was absent. 6